Tabbah v R

[2019] NSWCCA 324

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Tabbah v R [2019] NSWCCA 324
Hearing dates:	2 October 2019
Date of orders:	30 December 2019
Decision date:	30 December 2019
Before:	Bathurst CJ at [1] Johnson J at [2] Fullerton J at [146]
Decision:	1. Time for the Applicant to apply for leave to appeal against sentence extended to 25 June 2019. 2. Grant the Applicant leave to appeal against sentence. 3. Appeal against sentence imposed on 10 December 2014 is allowed and the sentence is quashed. 4. For the offence of manslaughter, the Applicant is sentenced to imprisonment for 13 years comprising a non-parole period of eight years and six months commencing on 6 March 2012 and expiring on 5 September 2020 with a balance of term of four years and six months commencing on 6 September 2020 and expiring on 5 March 2025. 5. Pursuant to s.59 Crimes (Sentencing Procedure) Act 1999, the sentence imposed at the Sydney District Court on 22 May 2015 for an offence under s.60A(3) Crimes Act 1900 is varied to a sentence of imprisonment for three years, comprising a non-parole period of two years commencing on 6 March 2020 and expiring on 5 March 2022 with a balance of term of one year commencing on 6 March 2022 and expiring on 5 March 2023. 6. The earliest date upon which the Applicant will be eligible for release on parole is 6 March 2022.
Catchwords:	APPEAL – SENTENCE – offender convicted of manslaughter following trial for murder – offender requires an extension of time – offender was party to a joint criminal enterprise – whether sentencing Judge took into consideration a factor which was inconsistent with verdict of the jury – where fair reading of sentencing remarks demonstrated no error – where change in language was a slip – claims of errors in finding aggravating factors in s.21A(3) Crimes (Sentencing Procedure) Act 1999 – whether offence was a “part of a planned or organised criminal activity” – error established – whether offence aggravating because of substantial injury, emotional harm, loss or damage – where finding made by sentencing Judge open in circumstances where family of victim were physically present at time of offence – whether sentencing Judge impermissibly double counted offender’s previous criminal history – no double counting demonstrated – whether offence aggravated because it was committed “in company” – where being in company was an integral component of the offence – error established – interests of justice warranted grant of an extension of time – later sentence imposed for offence of recklessly wounding a law enforcement officer – assault on correctional officer while offender on remand – issue of totality to be considered on resentencing for manslaughter – special circumstances – offender resentenced
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912
Cases Cited:	Carroll v R [2019] NSWCCA 243 Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 Gore v R (2010) 208 A Crim R 353; [2010] NSWCCA 330 Hope v R [2018] VSCA 230 House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 Jinnette v R [2012] NSWCCA 217 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Makarov v R (No. 4) [2008] NSWCCA 341 Mariam v R; R v Mariam [2013] NSWCCA 338 Moore v R [2016] NSWCCA 185 R v Davis (Court of Criminal Appeal, Gleeson CJ, Meagher JA and Wood J, 4 February 1994) R v Diab [2005] NSWCCA 64 R v Forbes [2010] NSWSC 1547 R v Fraser and Spencer [2007] NSWSC 1449 R v Hamzy [2018] NSWCCA 53 R v Kari and Others [2008] NSWSC 993 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 R v O’Brien and Others [2012] NSWSC 1503 R v Schneidas (No 1) (1980) 4 A Crim R 96 R v Shedden [2013] NSWCCA 225 R v Smith [2015] NSWCCA 193 R v Tabbah; R v Tiriaki (No. 6) [2014] NSWSC 1764 Taufahema v R [2007] NSWSC 1460 v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120 Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14
Texts Cited:	---
Category:	Principal judgment
Parties:	Salim Tabbah (Applicant) Regina (Respondent)
Representation:	Counsel: Mr T Game SC; Mr D Barrow (Applicant) Mr D Patch (Respondent)   Solicitors: One Group Legal (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2012/73478
Publication restriction:	---
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: --- Citation: R v Tabbah; R v Tiriaki (No. 6) [2014] NSWSC 1764 Date of Decision: 10 December 2014 Before: Her Honour Justice Schmidt File Number(s): 2012/73478

Judgment

1. BATHURST CJ: I agree with the orders proposed by Johnson J and with his Honour’s reasons.

2. JOHNSON J: The Applicant, Salim Tabbah, seeks leave to appeal against sentence imposed on 10 December 2014 in the Supreme Court of New South Wales for the crime of manslaughter.

3. The Applicant stood trial together with his co-accused, Wassim Tiriaki, before Schmidt J and a jury at Sydney commencing on 2 April 2014. Both men were charged with the murder of Mathew Hedges at Chester Hill on 31 December 2011.

4. On 7 May 2014, the jury returned its verdicts whereby Mr Tiriaki was found guilty of murder and the Applicant was found not guilty of murder, but guilty of manslaughter.

5. On 10 December 2014, her Honour sentenced the Applicant and Mr Tiriaki: R v Tabbah; R v Tiriaki (No. 6) [2014] NSWSC 1764. The Applicant was sentenced to imprisonment for 14 years commencing on 6 March 2012 comprising a non-parole period of 10 years expiring on 5 March 2022 and a balance of term of four years expiring on 5 March 2026.

6. Mr Tiriaki was sentenced for murder to a term of imprisonment for 28 years with a non-parole period of 20 years.

The Applicant’s Grounds of Appeal

7. By Notice of Application for Leave to Appeal filed on 25 June 2019, the Applicant relies upon the following grounds of appeal, expressed by reference to her Honour’s remarks on sentence (“ROS”) in R v Tabbah; R v Tiriaki (No. 6):

1. Ground 1 - Her Honour erred when considering the objective seriousness of the Applicant’s conduct by taking into account a consideration inconsistent with the jury verdict.

2. Ground 2 - Her Honour erred (at ROS [55]-[56]) in finding that the offence was aggravated on the basis that it was part of a planned criminal activity.

3. Ground 3 - Her Honour erred in finding (at ROS [55]) that the offence was aggravated because the injury, emotional harm, loss or damage caused by the offence was substantial.

4. Ground 4 - Her Honour erred in finding (at ROS [55]) that the offence was aggravated because of the Applicant’s record of prior convictions.

5. Ground 5 - Her Honour erred in finding (at ROS [55]) that the offence was aggravated because it was committed in company.

Extension of Time to Bring Appeal

8. It will be observed that the Applicant was sentenced as long ago as 10 December 2014 and that the Notice of Application for Leave to Appeal against sentence was not filed in this Court until 25 June 2019. The Applicant had filed a Notice of Intention to Appeal, but the last extension of that Notice expired on 15 March 2017.

9. Section 10(1)(b) Criminal Appeal Act 1912 permits the Court to extend time for the bringing of an appeal which is otherwise out of time.

10. The Applicant requires an extension of time for the purpose of his application for leave to appeal. In this respect, the Applicant relies upon the following affidavits:

1. affidavit of the Applicant sworn 18 June 2019;

2. affidavit of Michael Ayache, solicitor, sworn 25 June 2019.

11. In the event that the Court moved to resentence the Applicant, reliance was placed on the affidavit of Jacqueline Vandebeek, the Applicant’s solicitor, affirmed 30 September 2019.

12. On the application for an extension of time, the Crown relied upon the affidavit of Michael Jones, solicitor, affirmed 23 June 2019.

13. A further affidavit of Mr Jones affirmed 1 October 2019 responded to matters contained in the affidavit of Ms Vandebeek, in the event that the Court found error and moved to resentence the Applicant.

14. The affidavits relied upon by the Applicant and the Crown on the application for extension of time recounted the protracted history of this matter before this Court. It is not necessary to recount that history in detail for the purpose of the present application.

15. The Applicant indicated an initial desire to appeal against both conviction and sentence, but advice was received from senior counsel in June 2016 that only the sentence appeal should proceed. Thereafter, there was a change in legal representation for the purpose of different counsel being briefed. Unusually in October 2018, the solicitor then appearing for the Applicant was himself charged with criminal offences so that he could not continue to act for the Applicant. In due course, senior and junior counsel advised that a sentence appeal had merit.

16. The Crown opposed the grant of an extension of time, pointing to the lengthy delay in the filing of an appeal in June 2019.

17. The discretionary power to extend the time limit in s.10(1)(b) Criminal Appeal Act 1912 is a legislative recognition that the interests of justice in a particular case may favour permitting an application for leave to appeal against sentence to be heard notwithstanding that it was not brought within time: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [32].

18. The interests of justice will often pull in different directions and include consideration of the adverse effect on the victim or on the community generally occasioned by reopening a concluded criminal proceeding: Kentwell v The Queen at [32]. The present application relates to sentence only. The Court should keep in mind that the prospect of reopening the question of sentence can have a detrimental effect upon victims of the crime, including family members of a victim of homicide. Relevant to the determination of the interests of justice on an application to extend time are the prospects of success of the grounds of appeal should the extension be granted: Kentwell v The Queen at [33], [44].

19. The delay in the Applicant bringing this application arises from a protracted process whereby assessment as to the merits of an appeal against conviction were under consideration followed by a change in legal representation, and the unusual feature of the Applicant’s solicitor himself becoming unavailable with further delay following before advice was obtained which culminated in the bringing of a sentence appeal.

20. The interests of justice test to be applied on the present application for extension of time requires attention to be given to the merits of the Applicant’s grounds of appeal against the background of the substantial passage of time since sentence was passed in December 2014.

21. I will return to the issue of extension time after considering the merits of the application.

Facts of Offence

22. The deceased, Mathew Hedges, was aged 25 years when he died. He had four children all under the age of seven years. There was no evidence that the deceased knew the Applicant or Mr Tiriaki.

23. Approximately six weeks before his death, the deceased was released from prison after serving a short sentence for assault and he returned to live at his mother’s house at Chester Hill.

24. Evidence was led in the trial to indicate that the deceased was a drug user and a minor drug dealer and that he may have been in possession of drugs and/or money on the night that he was killed.

25. On the evening of 30 December 2011, the deceased was at home with his two younger daughters, his girlfriend, his mother and his two teenage nephews. He had gone to bed at some time after midnight.

26. At about 1.40 am, the Applicant (then aged 22 years) and Mr Tiriaki (then aged 21 years) arrived outside the deceased’s home. They first removed the flyscreen from one of the lounge room windows. At this time, the lights in the lounge room were off, but the television was on and the deceased’s two teenage nephews were awake and watching television. One of the boys saw a shadow outside the window and the other heard the noise of the flyscreen being removed. They both got up to have a look with one asking “Who’s that?” and the other hearing someone outside saying “Let me in”. The lounge room glass window was then smashed (apparently with a brick which was later located at the scene by police). One nephew went to wake the deceased and the other went to check on the deceased’s two daughters in another bedroom.

27. The deceased got up to investigate and went into the lounge room, closely followed by his girlfriend. At this time, the deceased was unarmed and wearing no clothing except his boxer shorts with briefs underneath. The deceased moved towards the smashed window asking “Who the fuck is there?”

28. The deceased was then shot at close range by Mr Tiriaki. The single bullet struck the deceased’s finger and went through his chest and out through his back. The deceased’s girlfriend felt the heat of the bullet pass her arm and she saw the deceased drop to the ground.

29. The deceased died on the floor of the lounge room in the presence of his girlfriend and five family members.

30. The Applicant and Mr Tiriaki fled on foot.

31. Mr Tiriaki’s brother, Mahmoud Tiriaki, resided at Chester Hill at a place about two kilometres from the deceased’s home. CCTV footage recovered by police showed two people running past the National Archives building in Chester Hill at about 1.46 am, shortly after the shooting. It was the Crown case that these persons were Mr Tiriaki and the Applicant.

32. On the night of the shooting, Mahmoud Tiriaki had slept at his parents’ house. At about 9.40 am the following morning, he returned to his home in Fuller Street, Chester Hill. He looked inside his wheelie bins and observed the gun used to kill the deceased, a spent cartridge, five unspent cartridges, two rolls of duct tape, two black neoprene face masks, two hooded jackets and a number of gloves. A black folding knife was also located nearby. Having made this discovery, Mahmoud Tiriaki contacted police.

33. Forensic evidence linked these incriminating items to Mr Tiriaki and the Applicant and to the crime scene at Chester Hill. The Crown’s circumstantial case also relied upon telephone records.

34. Each of the Applicant and Mr Tiriaki gave evidence at the trial and each denied any involvement in the death of the deceased and maintained that he was not present at the scene of the shooting. Both denied knowing the deceased.

The Sentencing Remarks

35. To assist an understanding of the grounds of appeal, it is appropriate to set out extracts from her Honour’s sentencing remarks.

36. Early in the sentencing remarks, her Honour said at [5]:

“On sentencing there was no issue between the parties that given the evidence and the two verdicts reached, the jury was satisfied that it was Mr Tiriaki who fired the shot which killed Mathew Hedges, intending either to kill him or to inflict grievous bodily harm; that Mr Tabbah was with him; that the two offenders were party to a joint criminal enterprise and had gone there to break and enter into Mathew Hedges' home, while armed, intending to commit a robbery there; and that Mr Tabbah had contemplated that Mr Tiriaki intended to threaten Mathew Hedges with the gun, which he knew might be loaded, or that he had contemplated the possibility that Mr Tiriaki might discharge the gun.”

37. The sentencing Judge identified the issues on sentence with respect to the Applicant at [11]:

“In Mr Tabbah's case there is a question as to whether the evidence established beyond reasonable doubt only that he had contemplated that Mr Tiriaki intended to threaten Mathew Hedges with the gun which he knew might be loaded, or that he had contemplated the possibility that Mr Tiriaki would discharge the gun.”

38. Her Honour referred to aspects of the evidence and made findings at [13]-[14]:

“13   There was no issue between the parties that the evidence established that the offenders went to Mathew Hedges' home, having planned to rob him, either of drugs or money or both. That was established by the evidence. The offenders had masks, gloves, a loaded gun, a knife and other materials which would all be of assistance to them in such a robbery. Those were the things found by police at Mr Tiriaki's brother's home the next day, where Mr Tiriaki had disposed of them in a bin, on his evidence during the night before. The knife was found on the ground nearby. Mr Tiriaki and Mr Tabbah's DNA was later found on various of those items and on 6 March 2012 they were both arrested and charged with Mathew Hedges' murder.

14   I am satisfied that the evidence did not establish beyond reasonable doubt that Mr Tiriaki and Mr Tabbah went to Mathew Hedges' home having planned to kill him, but it does establish beyond reasonable doubt that Mr Tiriaki did not act in panic when he shot Mathew Hedges and that he intended the likely result of the shot which he fired, namely death. It also establishes beyond reasonable doubt that Mr Tabbah contemplated the possibility that Mr Tiriaki would discharge the gun.”

39. Schmidt J then set out the factual basis upon which the Applicant and Mr Tiriaki were to be sentenced in paragraphs which need not be included in this judgment.

40. Her Honour said at [23]:

“Why Mr Tiriaki shot Mathew Hedges has never been explained. What all of this evidence did establish beyond reasonable doubt, however, was that what the two offenders did that night was the result of planning, given what they were wearing and had taken with them; that it was contemplated that Mr Tiriaki would be armed with a loaded gun; that it might be discharged; that the shot which killed Mathew Hedges was fired deliberately; and that the shooting was not the result of any panic.”

41. Her Honour concluded that part of the sentencing remarks under the heading “Findings” at [26]:

“This evidence not only establishes beyond reasonable doubt that Mr Tabbah had contemplated that Mr Tiriaki would discharge the gun, it also proves beyond reasonable doubt that the result of the shot which Mr Tiriaki fired was likely to be more serious than merely grievous bodily harm. It was not fired as the result of any panic, but deliberately and at close range, into Mathew Hedges' chest. That establishes beyond reasonable doubt that Mr Tiriaki intended the likely result of his actions, namely Mathew Hedges' death.”

42. Under a heading “The Seriousness of Mr Tabbah’s Offence”, her Honour said at [49]-[54]:

“49   Sentencing Mr Tabbah raises questions of some complexity. The sentencing task must begin by an assessment of the nature and seriousness of his offence.

50   Mr Tiriaki and Mr Tabbah went to Mathew Hedges' home intending to rob him. Drugs were found at Mathew Hedges' home and evidence was led which suggested that he was not only a drug user, but a drug supplier, who had been supplying drugs from his home. That does not lessen the seriousness of Mr Tabbah's offence. As Howie J discussed in R v Frazer [2007] NSWSC 1449 at [25]:

‘The criminal law does not discriminate between unlawful homicides on the basis of the effect upon the community of the death of the victim. It acts on the understanding that all life is precious and the taking of human life is of the greatest seriousness regardless of the identity of the victim or the impact of the death on others.’

51   While Mr Tabbah's offence was less serious than the murder of which Mr Tiriaki was convicted, the evidence establishes that his was a very serious offence of manslaughter, resulting as it did in Mathew Hedges' death during the robbery which the two offenders had planned to commit together, by breaking in, late at night at Mathew Hedges' home, when he would be most vulnerable, while armed with a loaded gun.

52   Instead of fleeing, as he could have, when they were detected by the two boys awake inside the lounge room, Mr Tabbah remained to assist Mr Tiriaki, knowing that he had a loaded gun and contemplating that the gun would be discharged, as I have explained. That must all be taken into account when sentencing Mr Tabbah.

53   In Mr Tabbah's case the jury's verdict reflects that it was not established beyond reasonable doubt that he intended Mathew Hedges to suffer death or serious injury as a result of his own actions. That may not be overlooked when sentencing Mr Tabbah for his offence. Nevertheless, as I have explained, the evidence establishes that Mr Tabbah's moral culpability for his serious offending was also unquestionably high and must be reflected in the sentence imposed upon him.

54   Like murder, manslaughter also involves the unlawful killing of another person. The maximum penalty imposed by the Parliament for that offence is, as I have said, 25 years imprisonment. That is a statutory guidepost which must be considered as one of the many factors which must be taken into account in arriving at a proper sentence in Mr Tabbah's case. There is, however, no standard non-parole period for this offence. Nor is it possible to identify a range of sentences for manslaughter offences of which account should be taken, given the nature of such offences.”

43. The sentencing Judge dealt with a number of topics under a heading “Aggravating Factors” which, given the grounds of appeal, should be set out in this judgment. Her Honour said at [55]-[60]:

“55 There are however, various aggravating factors specified in s 21A(2) of the Crimes (Sentencing Procedure) Act which must be taken into account when sentencing Mr Tabbah. They include that:

(d)    the offender has a record of previous convictions;

(e)    the offence was committed in company;

(ea)    the offence was committed in the presence of a child under 18 years of age;

(eb)    the offence was committed in the victim's home;

(g)    the injury, emotional harm, loss or damage caused by the offence was substantial;

(j)    the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence;

(n)    the offence was part of a planned or organised criminal activity.

56   The evidence of what the offenders had with them when they went to Mathew Hedges' home established that the offence was the result of prior planning, as I have already said. Mr Tabbah was in company with Mr Tiriaki when they broke into Mathew Hedges' home, where he was with his children, nephews, girlfriend and mother. Mr Tabbah's offence unquestionably resulted in substantial harm to them all. That the offence was committed even though the presence of children became apparent to the offenders when they were breaking into the lounge room, must also be taken into account.

57   Also to be taken into account is that Mr Tabbah has a long and serious criminal record, commencing in 2004. His offences include serious driving offences, assault, destroying or damaging property, robbery in company, assault occasioning actual bodily harm, robbery while armed with an offensive weapon, and assaulting law enforcement officers.

58   Since 2005 he has been released on parole three times. On two prior occasions he has committed further offences while on parole and had his parole thereupon revoked. On this occasion he had been released on parole in November 2011 and was still on parole when he committed this offence in December 2011.

59 Mr Tabbah has also repeatedly been dealt with for offences committed while in custody, including fighting, assaults and damage to property. His offending includes an offence under s 60A of the Crimes Act of assaulting an officer, whilst in custody on remand for this matter. He has entered a plea for that offence, for which he is yet to be sentenced.

60   This serious record certainly permits no leniency in Mr Tabbah's sentencing exercise.”

44. Her Honour then referred to mitigating factors specified in s.21A(3) Crimes (Sentencing Procedure) Act 1999 accepting (at ROS [63]) that “some account should be taken of the efficient way in which this trial was conducted” on the Applicant’s behalf.

45. Her Honour then considered the Applicant’s personal circumstances based upon a report of Mr Bradley Jones, psychologist, dated 26 October 2014 together with the Applicant’s criminal history and an affidavit of the Applicant sworn 7 November 2014 concerning his custodial conditions.

46. Her Honour summarised the report of Mr Jones concerning the Applicant at [77]-[80]:

“77   Mr Jones' opinion was that Mr Tabbah was likely to have become institutionalised, having spent approximately six and a half years in custody since aged 15 years. He explained that this is a process where an inmate is shaped and transformed by the institutional environment in which they live in custody, with the result that the norms of prison life are incorporated into habits of thinking, feeling and acting. To survive the prison experience, the inmate culture, patterns of behaviour and interacting with others are internalised, in ways which may be counterproductive outside prison.

78   Mr Jones explained that this process may have more effects on those who enter institutions early in life, with significant psychological costs the result. Release can then be traumatic, with disorientation resulting, as well as behaviours counterproductive to re-entry into the community, whose effects impede successful reintegration. Mr Jones considered that:

‘Regrettably, further incarceration of Mr Tabbah is likely to solidifying (sic) a personal identity that runs counter to the prosocial identity he will need to successfully navigate his re-entry into society.’

79   In the result Mr Jones assessed Mr Tabbah as posing a high risk of committing further violent offences. He diagnosed him to be suffering intermittent explosive disorder, antisocial personality disorder and posttraumatic stress disorder.

80   Mr Jones also considered that treatment in custody to manage and decrease his risk of recidivism would be in Mr Tabbah's interest, but that treatment of his symptoms could only occur to a limited capacity, given the nature of correctional facilities and the difficulty of providing him the necessary treatment there. In Mr Jones' view such treatment could only be appropriately provided in the community, with strict compliance with a treatment plan.”

47. Once again, given the grounds of appeal, it is appropriate to set out part of the sentencing remarks under the heading “Deterrence” at [81]-[84]:

“81   The circumstances of Mr Tabbah's offence and his personal circumstances are such that ordinarily there could be no question that both general and specific deterrence must feature in the sentence which is imposed upon him.

82   Given the evidence of Mr Tabbah's mental disorders there must, however, in my view be some lesser weight given to the role which general deterrence plays in his sentence (see Muldrock at [53] - [54]). Nevertheless, I take the view that some account must be taken of such deterrence, because on the accounts which Mr Tabbah gave Mr Jones, it is apparent that he does have insight into his behaviour and understands the gravity of his actions, when he acts violently towards others (see R v Wright (1997) 93 A Crim R 48 at 51 - 52).

83   Also to be considered is that Mr Tabbah unquestionably poses a very serious risk of committing further, serious offences of violence, both while in custody and on release. Mr Tabbah, on his own account, has not only a continuing attitude of disobedience to the law which binds us all, but also appears to have uncontrollable rage, the response to which is repeated, serious violence.

84   I am satisfied that in his sentence it follows that considerable weight must accordingly be given to personal deterrence and the protection of the community (see: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 and R v Rice [2004] NSWCCA 384; 150 A Crim R 37 at [26]; R v Abboud [2005] NSWCCA 251 at [33]; R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at [54]).”

48. Her Honour referred to a number of topics under the heading “Totality and Parity”, including the fact that the Applicant’s offence was committed whilst on parole. Her Honour said at [85]-[93]:

“85   It was submitted for Mr Tabbah that he had spent a considerable period in custody before committing this offence; that the Court must be mindful of not imposing a crushing sentence upon him; and that while a significant custodial sentence must be imposed upon him, the principle of totality applied. Accordingly, he should be sentenced so as not to put at risk any incentive that he might have to rehabilitate himself; not to induce a feeling of hopelessness; and not to destroy any expectation that he may have a useful life after release.

86   Despite these submissions, I am satisfied that the principle of totality does not arise for consideration in Mr Tabbah's case. Totality is a principle of sentencing concerned with multiple offending, but it does not arise to be considered simply because an offender has a long, serious criminal record of repeated offending in the past.

87   In Mr Tabbah's case, the position is that he was sentenced in 2008 to a four year term, which expired on 17 February 2012. He was not released on parole until 14 November 2011, because of sentences imposed on him in September 2009 for other offences, the first of which expired on 17 February 2012 and the second on 14 November 2011, when he was released on parole.

88   This offence was committed in December 2011, after Mr Tabbah's release on parole for his 2008 offence. That parole was never revoked and may not be considered as having been notionally revoked (see Skondin v R [2006] NSWCCA 59 at [16] - [17]).

89   Mr Tabbah's sentence for his 2008 offence expired on 17 February 2012. He was arrested on 6 March 2012 and charged with Mr Hedges' murder. He has been held in custody solely referable to the offence for which he is now being sentenced, until he committed another offence in custody, to which he has now pleaded guilty and for which he will be sentenced in the District Court, after this sentence has been imposed.

90   It follows that while the principle of totality will arise to be considered in that further sentencing exercise in the District Court, the principle does not apply in this sentencing exercise, given that Mr Tabbah's last sentence expired on 17 February 2012; that his parole for his 2008 offence was never revoked; and that on 6 March 2012 he was arrested and held in custody referable to this offence.

91   Accordingly, I have not taken the principle of totality into account in this exercise.

92   That Mr Tabbah and Mr Tiriaki were co-offenders engaged in the same criminal enterprise when Mathew Hedges was shot, means that the parity principle requires consideration.

93   Applying the parity principle when co-offenders are convicted of different offences raises particular difficulties (see Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 and Jimmy v R (2010) 77 NSWLR 540 at [230]). The principle seeks to ensure that even though different sentences must be imposed upon the offenders, given the different offences for which they are being sentenced and the differences in their particular circumstances, which must be taken into account in their respective cases, that the sentences imposed also endeavour to ensure that justice is done between them. I have accordingly taken account of the principle of parity in sentencing Mr Tabbah.”

49. Her Honour then turned to the issue of special circumstances and made the following findings at [94]-[98]:

“94   Mr Tabbah submitted that special circumstances would be found in his case, notwithstanding his entrenched recidivism, given the harsh and onerous nature of his custody, the evidence of his institutionalisation and the evidence that his rehabilitation would be furthered by an extended period of supervision, where he would benefit from treatment not likely to be available to him in custody.

95   I accept that the evidence does establish that Mr Tabbah's custody will be harsh. This evidence and the opinions expressed by Mr Jones as to Mr Tabbah's institutionalisation and his need for considerable treatment, if his repeated resort to serious violence is to have any prospect of being brought under control, must [properly] be taken into account, in deciding whether special circumstances should be found in his case. I also accept that the evidence establishes that Mr Tabbah has suffered social, educational, psychological and occupational disadvantages in his relatively young life and that he is at considerable risk of further institutionalisation, entrenched recidivism and serious reoffending, given his uncontrollable anger and resort to violence.

96   I have given these matters careful consideration and have concluded that while a relatively lengthy sentence must be imposed upon him for his serious offence, he will need a long period of careful supervision in order to re-adjust back into the community, to ensure that he receives necessary treatment and does not re-offend. There is, however, a minimum period which he must spend in custody to reflect the seriousness of his crime. Accordingly, there can only be a small reduction to the non-parole period to which he will be sentenced, that being the minimum period which Mr Tabbah must spend in custody for his serious offence.

97   Accordingly, I do find special circumstances. The resulting adjustment to the non-parole period is intended to result in Mr Tabbah receiving a sufficient period of conditional and supervised liberty, to assist in the protection of the community on his release and to maximise the prospect that he will not reoffend, by pursuing treatment not readily available to him in custody.

98   Whether Mr Tabbah becomes eligible for such parole at the end of his non-parole period will, of course, depend on his ongoing conduct in custody. That lies entirely in his own hands.”

50. The sentencing Judge then turned to matters relevant to the sentencing of Mr Tiriaki before returning to express the following conclusions concerning the Applicant’s sentence at [137]-[138]:

“137   In Mr Tabbah's case, having considered all of the matters I have mentioned, I have concluded that the sentence for his offence must commence on 6 March 2012.

138   The total term of his imprisonment will be 14 years, with a non-parole period of 10 years. The result is that the earliest date that Mr Tabbah will be eligible for release for his offence is 25 March 2022. His release will depend firstly on the sentence to be imposed on him for the s 60A offence, for which he is yet to be sentenced and secondly when eligible for release, on him convincing the Parole Authority that he should be then released on parole. His sentence will expire on 5 March 2026.”

A Later Sentence Imposed on the Applicant

51. As Schmidt J noted, at the time of the Applicant’s sentence for manslaughter, he was awaiting sentencing proceedings in the District Court with respect to an offence of recklessly wounding a law enforcement officer contrary to s.60A(3) Crimes Act 1900, an offence punishable by a maximum penalty of 12 years’ imprisonment with no standard non-parole period.

52. On 2 June 2014, a Judge-alone trial of the Applicant commenced before Acting Judge Madgwick QC upon an indictment charging an offence of wounding with intent under s.33 Crimes Act 1900 with an alternative count under s.60A(3) Crimes Act 1900. On the second day of the trial, the Crown accepted the Applicant’s plea of guilty to the s.60A(3) count and it was that offence for which the Applicant was sentenced.

53. The Applicant was sentenced for this offence by Acting Judge Madgwick QC at the Sydney District Court on 22 May 2015 to imprisonment for a term of three years with a non-parole period of two years commencing on 5 September 2021 and expiring on 4 September 2023 with a balance of term of one year expiring on 4 September 2024.

54. This offence was committed at the Metropolitan Reception and Remand Centre (“MRRC”) at Silverwater on 18 April 2012 whilst the Applicant was on remand awaiting trial for murder. The victim, Andrew Hay, was employed as a First Class Correctional Officer at the MRRC and was working in the Court Escort Security Unit identifying, restraining and preparing inmates for transportation. The victim became involved in a heated exchange with a group of inmates which did not include the Applicant. Within a few minutes, several other inmates, including the Applicant, were being led to a truck. The Applicant was handcuffed in front of him. The Applicant and the victim became involved in a heated exchange. The victim was escorting protection inmates to a truck which was generally in the direction of the Applicant. The Applicant walked towards the victim and sharply increased his pace before raising his handcuffed hands above his head and forcefully bringing them down on the victim’s nose. The Applicant was then restrained without further incident.

55. As a result of this attack, the victim suffered a fractured nose and a deep laceration to the nose which has caused permanent scarring. In addition, the victim had bruising under his left eye.

56. As would be apparent, the sentence imposed by Acting Judge Madgwick QC for this offence was partially accumulated upon the sentence imposed for manslaughter. If the Court finds error and determines that the Applicant should be resentenced for the manslaughter offence, then it will be necessary for the Court to vary the commencement date for the sentence on the s.60A(3) Crimes Act 1900 matter in accordance with s.59 Crimes (Sentencing Procedure) Act 1999.

Ground 1 - Claim of Error by Taking into Account a Consideration Inconsistent with the Jury Verdict

The Applicant’s Submissions

57. Mr Game SC and Mr Barrow, counsel for the Applicant, submitted that the sentencing Judge had made a finding concerning the objective seriousness of the offence by taking into account a consideration inconsistent with the jury verdict. In this respect, it was submitted that her Honour had identified correctly (at ROS [5] - see [36] above) that the Applicant “had contemplated the possibility that Mr Tiriaki might discharge the gun”. It was accepted that her Honour had correctly utilised the same phrase at ROS [11] and [14] (see [37] and [38] above). It was accepted, as well, that her Honour had utilised appropriate analogous language in noting (at ROS [23]) that the Applicant contemplated that Mr Tiriaki would be armed with a loaded gun and “that it might be discharged” (see [40] above).

58. It was submitted that error occurred in her Honour’s statement (at ROS [26]) that the evidence established beyond reasonable doubt that the Applicant “had contemplated that Mr Tiriaki would discharge the gun” (see [41] above). The Applicant contended that erroneous reasoning was repeated (at ROS [52]) where her Honour said that the Applicant remained to assist Mr Tiriaki knowing that he had a loaded gun and “contemplating that the gun would be discharged, as I have explained” (at [42] above).

59. It was submitted for the Applicant that what was said (at ROS [26] and [52]) constituted an erroneous finding which went beyond the factual limits imposed by the jury verdict and beyond the basis of the Applicant’s liability for manslaughter.

Crown Submissions

60. The Crown submitted that the Court should approach this ground upon the basis that her Honour had correctly identified the basis upon which the Applicant was to be sentenced for manslaughter following the jury verdict, but had used less precise language in this respect on the occasions complained of in the sentencing remarks and that these ought be considered to be a slip.

61. It was submitted that the sentencing Judge had made appropriate findings concerning the Applicant’s liability for manslaughter in the other paragraphs referred to in the sentencing remarks and that these paragraphs reflected her Honour’s true reasoning in this respect.

Decision

62. At the hearing in this Court, senior counsel for the Applicant accepted that this ground of appeal comes down to the question whether the sentencing Judge made a slip at the points complained of (T11, 29, 2 October 2019).

62. In approaching this ground of appeal, it is necessary to fairly read the entirety of the sentencing remarks. It is necessary, as well, to keep in mind that the sentencing of the Applicant for manslaughter followed a detailed discussion and analysis by the sentencing Judge at the trial stage concerning appropriate directions to the jury on manslaughter in its various forms. The language used by her Honour (at ROS [5], [11] and [14]) was entirely consistent with the directions given to the jury on that issue. The language used by her Honour (at ROS [23]) was slightly different, but not different in substance to the earlier language.

63. Her Honour used different language which gives rise to this ground of appeal (at ROS [26] and [52]). It would be unusual, to say the least, for her Honour to recalibrate the language used with respect to this finding without some explanation as to why that was being done. It was submitted for the Applicant that it may have been that the variation in the language indicated a measure of confusion in the mind of the sentencing Judge on this aspect so that the Court should not conclude that this was merely a slip.

64. Her Honour had a clear understanding of the basis for manslaughter with respect to the Applicant with that understanding being demonstrated at the trial and at the sentencing hearing. This understanding carried through into the references in the sentencing remarks before the phrases complained of (at ROS [26] and [52]).

65. In my view, the appropriate explanation for the change in language is a slip on the part of the sentencing Judge whereby, in describing what the Applicant had contemplated, the words “the possibility” were omitted (at ROS [23] and [26]). This was not an intentional omission, but a slip which can occur at times in sentencing remarks. The clear and appropriate finding made by the sentencing Judge was that contained in earlier parts of the sentencing remarks. Her Honour did not intentionally omit the words “the possibility” in the passages complained of in support of this ground.

66. I am satisfied that what occurred here was a slip and that the operative finding with respect to the Applicant’s liability for manslaughter is that contained in the earlier passages of the sentencing remarks to which reference has been made.

67. No error has been demonstrated under the first ground of appeal.

Ground 2 - Error in Finding that the Offence was Aggravated on the Basis that it was Part of a Planned Criminal Activity

Submissions of the Applicant

69. The remaining grounds of appeal relate to the sentencing Judge’s approach to aggravating factors at ROS [55]-[56] (see [43] above).

70. The second ground of appeal focuses upon her Honour’s statement at ROS [56] to the following effect:

“The evidence of what the offenders had with them when they went to Mathew Hedges' home established that the offence was the result of prior planning, as I have already said.”

71. The closing words of that sentence involve a reference back to the findings made by the sentencing Judge that the Applicant and Mr Tiriaki “went to Mathew Hedges’ home, having planned to rob him, either of drugs or money or both” with reference being made to weapons and disguises taken by the two men for that purpose (see ROS [13] at [38] above).

72. The Applicant submitted that her Honour had erroneously made a finding for the purpose of s.21A(2)(n) Crimes (Sentencing Procedure) Act 1999 that the manslaughter offence was “part of a planned or organised criminal activity”. It was submitted that the fact that an offence was planned does not of itself bring it within the aggravating factor in s.21A(2)(n), with this provision only being engaged when a particular offence is part of a more extensive criminal undertaking.

73. It was submitted that the mere fact that there was some planning with respect to a robbery offence did not attract a finding that the manslaughter offence was part of a planned or organised criminal activity.

Crown Submissions

74. The Crown noted that the submission for the Crown at first instance sought a finding that the offence was part of a planned or organised criminal activity that included the use of disguises to reduce the risk of detection and possession of weapons, but that no reference had been made by the Crown to s.21A(2)(n) in this respect. It was noted that no submission to the contrary had been made by counsel appearing for the Applicant at first instance.

75. The Crown submitted that it was open to the sentencing Judge to find that the offence was aggravated in this way. It was submitted that a degree of planning may affect the relative seriousness of the offence at common law as “any other objective factor that affects the relative seriousness of the offence”: s.21A(1)(c) Crimes (Sentencing Procedure) Act 1999.

76. The Crown submitted that no error had been demonstrated in this respect.

Decision

77. In approaching this and remaining grounds of appeal, which are also based upon s.21A(2) Crimes (Sentencing Procedure) Act 1999, it is necessary to keep in mind the structure of her Honour’s sentencing remarks. A number of aggravating factors specified in s.21A(2) were set out with her Honour stating that these factors “must be taken into account when sentencing Mr Tabbah” (see ROS [55] at [43] above).

78. Her Honour then made short reference to these factors, principally at ROS [56] (see [43] above).

79. It is clear that her Honour identified aggravating factors under s.21A(2) and then made findings by reference back to those aggravating factors. Insofar as the Crown submits in this Court that the approach of the sentencing Judge was to make a finding with respect to planning under common law principles and not the statutory factor in s.21A(2)(n), that submission is difficult to sustain given the form and content of the sentencing remarks.

80. In Moore v R [2016] NSWCCA 185 at [74], Basten JA (R A Hulme J agreeing) stated that the ordinary meaning of s.21A(2)(n) is not satisfied by some degree of planning, but requires a more extensive criminal undertaking. As Basten JA observed, s.21A(2)(n) does not say that “the offence was planned”, but rather that the offence was “part of a planned or organised criminal activity”.

81. Basten JA noted at [75] that planning may constitute a common law factor affecting the relative seriousness of the offence by way of s.21A(1)(c). His Honour continued at [75] with respect to the common law factor:

“Whether an offence is ‘planned’ will involve matters of degree; the comparison is between a level of premeditation of criminal conduct and a response which is spontaneous, ill-considered or opportunistic. In this sense, there was a level of planning; the sentencing judge was satisfied that the attack was not simply a response to an unforeseen confrontation.”

82. Basten JA concluded at [75] that there was no error in the sentencing Judge in that case treating the matters as aggravating by reference to the common law concept of planning, with the incorrect statutory classification not having affected the sentence imposed so that the error was immaterial.

83. The difficulty in the present case is that the Applicant was to be sentenced for the offence of manslaughter. Although the offence occurred in the context of a planned robbery, this did not satisfy the requirement for a more extensive criminal undertaking to allow the statutory aggravating factor in s.21A(2)(n) to apply. Planning, as a common law factor, could have applied if the Applicant was being sentenced for robbery by reference to s.21A(1)(c). However, he was being sentenced for manslaughter and not robbery. Further, the species of manslaughter for which the Applicant was being sentenced was one which did not involve any planning of a killing on his part.

84. In these circumstances, I do not consider that it was open to the sentencing Judge to have regard to the planning involved in the robbery as an aggravating factor on sentence for manslaughter by reference to either the common law principles available under s.21A(1)(c) or the statutory aggravating factor in s.21A(2)(n) Crimes (Sentencing Procedure) Act 1999.

85. I would uphold this ground of appeal.

Ground 3 - Error in Finding that the Offence was Aggravated Because the Injury, Emotional Harm, Loss or Damage Caused by the Offence was Substantial

Submissions of the Applicant

86. It was submitted for the Applicant that her Honour, at ROS [55]-[56] (at [43] above), took into account the aggravating factor in s.21A(2)(g) when her Honour said (at ROS [56]) that the Applicant’s offence “unquestionably resulted in substantial harm to them all”, being a reference to the children, nephews, girlfriend and mother of the deceased who were present in the house at the time he was killed.

87. It was noted that victim impact statements were before the sentencing Judge from the mother and father of the deceased, although the mother only was present at the time of the offence. The Applicant submitted that there was no evidence from any member of the deceased’s family of any harm suffered which would be more than one normally would expect in an offence with the features of this crime.

88. Accordingly, it was submitted that it was erroneous to have regard to this material as a statutory aggravating factor.

Crown Submissions

89. The Crown submitted that it was open to the sentencing Judge to have regard to this aspect as an aggravating factor on sentence in the circumstances of this case.

90. It was noted that the deceased’s mother, girlfriend, two infant daughters and his nephews (aged 15 and 16 years) were all in the house at the time when the deceased was shot, with him dying in their presence in the lounge room.

91. The Crown noted that evidence of the events and of subsequent distress was given at the trial of the Applicant by the deceased’s mother, girlfriend and his two nephews. In these circumstances, it was submitted it was open to her Honour to find that s.21A(2)(g) applied in this case.

Decision

92. It is important to keep in mind the precise terms of the finding made on this issue by the sentencing Judge. The finding challenged under this ground of appeal did not extend to the father of the deceased who made a victim impact statement, but was not present at the time of his son’s death. Rather, the finding made by the sentencing Judge concerned the six relatives of the deceased who were physically present at the time of his death.

93. The mother, girlfriend and two nephews of the deceased each gave graphic evidence at the trial of the events surrounding the killing of the deceased. Each of them referred to the significant level of distress experienced by those present who were, in effect, eye witnesses to the killing of the deceased.

94. Jennifer Hedges, the mother of the deceased, said that she had been asleep when she heard a bang and ran out to see her son on the floor with a bullet through his chest. She confirmed that everyone in the house was very distressed. Jessica Moffatt, the girlfriend of the deceased, was standing in the lounge room when the deceased was shot in her presence. The bullet went past her and she “felt the heat come past [her] arm”. She confirmed that everyone in the house was awake and distressed.

95. The two teenage nephews of the deceased gave evidence. One nephew heard the window shatter and went to get the deceased’s two daughters, whom he was holding in his arms when he heard the gun shot. He said that there was a lot of crying and distress. The other nephew heard the window smash and went to wake the deceased who moved to the lounge room. He heard a shot and saw the deceased on the lounge room floor. He confirmed that there was much distress, crying and screaming.

96. This is not a case where the challenged finding is based upon a victim impact statement made by a relative who was not present and who learns of the death indirectly after it has occurred. Rather, each of the family members referred to by her Honour in this respect were present and witnessed the shocking events which took place in their own home, culminating in the brutal killing of the deceased.

97. In the circumstances of this case, it was open to the sentencing Judge to make the challenged finding by reference to the statutory aggravating factor in s.21A(2)(g).

98. I reject this ground of appeal.

Ground 4 - Error in Finding that the Offence was Aggravated Because of the Applicant’s Record of Prior Convictions

Submissions of the Applicant

99. Senior Counsel for the Applicant submitted that the sentencing Judge erroneously had regard to the Applicant’s record of previous convictions as a statutory aggravating factor under s.21A(2)(d) at ROS [55]-[60] (see [43] above) and ROS [84] (see [47] above).

100. The Applicant submitted that her Honour had impermissibly double counted the issue of the Applicant’s poor criminal record, firstly as an aggravating factor under s.21A(2)(d) and, secondly, so as to warrant an additional increase in sentence by reason of the heightened need for personal deterrence and protection of the community.

Crown Submissions

101. The Crown submitted that the sentencing Judge had approached the Applicant’s substantial criminal history in an orthodox manner in accordance with the principles in Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14 and R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [24].

102. The Crown pointed, as well, to the report of Mr Jones, psychologist, which stated that the Applicant was institutionalised and had a high risk for committing further violent offences.

103. It was submitted that no error had been demonstrated in this ground of appeal.

Decision

104. For the purpose of assessing the complaint of impermissible double counting in this ground, it is necessary to fairly read her Honour’s entire sentencing remarks. A sentencing Judge is not required to mention once only particular features in sentencing remarks. The question whether there has been impermissible double counting will depend upon an examination of the manner in which the sentencing Judge approached the issue in question: Carroll v R [2019] NSWCCA 243 at [36]-[39].

105. The Applicant’s poor history of prior convictions did not attract leniency on sentence and bore, as well, upon issues of specific deterrence and general deterrence. Such an approach is consistent with the principles emerging from Veen v The Queen (No. 2) at 477-478. This operates by reference to the Applicant’s attitude of disobedience to the law and to the increased weight to be given to retribution, personal deterrence and protection of society, as long as the sentence imposed remains proportionate to the objective gravity of the offence: R v McNaughton at [20], [26]. The Applicant’s criminal history was pertinent to where, within the boundary set by the objective circumstances of the offence, a sentence should lie: R v McNaughton at [26].

106. The report of Mr Jones contained findings based upon the Applicant’s history of prior convictions and sentences of imprisonment which also provided a foundation for the sentencing Judge’s approach to this issue.

107. In my view, her Honour’s use of the Applicant’s history of prior convictions did not involve double counting. The history of prior convictions was taken into account effectively once, although her Honour referred to this aspect at two different places in the sentencing remarks. A fair reading of the sentencing remarks discloses no error on the part of the sentencing Judge in this respect.

108. I would reject this ground of appeal.

Ground 5 - Error in Finding that the Offence was Aggravated Because it was Committed in Company

Submissions of Applicant

109. Once again by reference to ROS [55]-[56] (see [43] above), the Applicant submitted that the sentencing Judge fell into error by finding a statutory aggravating factor under s.21A(2)(e) in concluding that the Applicant “was in company with Mr Tiriaki when they broke into Mathew Hedges’ home”.

110. The Applicant submitted that the fact that he was present with Mr Tiriaki at the time of the shooting formed part of the foundation for his liability for manslaughter, so that to treat the Applicant as being “in company” with Mr Tiriaki as a statutory aggravating factor under s.21A(2)(e) involved impermissible double counting in a manner adverse to the Applicant.

Crown Submissions

111. The Crown submitted that being “in company” with Mr Tiriaki was not an element of the Applicant’s offence. Rather, the Applicant was liable to be sentenced for manslaughter on an extended joint criminal enterprise basis with liability not hinging on his presence.

112. Reliance was placed upon Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 at [47]. By way of analogy, the Crown submitted that a person who was acting as a lookout may be liable for an offence if the other elements of extended joint criminal enterprise existed, with there being no requirement for the person to be physically present at the time of the offence.

Decision

113. The statutory aggravating factor of being “committed in company” under s.21A(2)(e) is not made out merely because an offender happens to be in the company of another person at the time of the offending, with “company” meaning the presence of another person involved in the criminal undertaking, usually in order to give weight to the threats made by another offender: Gore v R (2010) 208 A Crim R 353; [2010] NSWCCA 330 at [29].

114. In the circumstances of this case, the liability of the Applicant for the crime of manslaughter arose because he was present with Mr Tiriaki at the time when the latter discharged the firearm, with the Applicant contemplating the possibility that his companion would discharge the firearm. In the circumstances of this case, the concept of being “in company” with Mr Tiriaki was an integral part of the offence itself.

115. The Crown is not assisted by the theoretical possibility that another person may be liable to conviction for an offence by operation of the extended joint criminal enterprise principle even though the person was not physically present in the vicinity of the crime when it was committed. That is not a helpful analysis for the purpose of understanding the Applicant’s liability to be convicted of manslaughter in the circumstances of this case.

116. Accordingly, I am satisfied that the sentencing Judge erred in having regard to this aspect as a statutory aggravating factor under s.21A(2)(e) so that this ground of appeal has been made good.

Resentencing the Applicant

117. Error has been established under the second and fifth grounds of appeal. Having identified specific error of the kind described in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40, it is necessary for this Court to exercise its sentencing discretion for the purpose of determining whether a lesser sentence should be imposed in accordance with s.6(3) Criminal Appeal Act 1912: Kentwell v The Queen at [43]. In doing so, of course, the Court should put to one side the erroneous use of statutory aggravating factors identified in the two grounds of appeal which have been upheld.

118. It is appropriate to have regard to the findings of the sentencing Judge referred to earlier in this judgment which are not challenged or were not the subject of successful challenge in this Court. This was a very serious offence of manslaughter and the moral culpability of the Applicant was substantial (see ROS [51]-[53] at [42] above).

119. The Applicant was on parole at the time of the offence. The Applicant’s criminal history did not assist him in any respect and issues of personal deterrence (in particular), retribution and protection of society remain important on sentence.

120. As the Applicant went to trial (as is his right), he is not entitled to a discount for a plea of guilty. There is no evidence of remorse on the Applicant’s part.

121. It is appropriate to have regard to the victim impact statements made by the parents of the deceased, with the comments of Schmidt J (at ROS [41]-[45]) remaining pertinent.

117. As mentioned earlier, the Applicant relies upon the affidavit of Ms Vandebeek affirmed 30 September 2019 on resentence. This affidavit annexed a large volume of documents relevant to the Applicant’s custodial history, including case notes for the period between April 2015 and August 2019. Contrary to his earlier approach, the Applicant has expressed a willingness to undertake the EQUIPS Aggression Program and was accepted for that program commencing in September 2018. Later case notes state that the Applicant engaged positively in that program in October-November 2018. In July 2019, the Applicant was approved to undertake the Violent Offender Treatment Program with a place to be offered to him when available.

118. In addition, the Applicant relied upon the transcript of the sentencing hearing in the District Court on 22 May 2015, at which the Applicant gave evidence, together with the sentencing remarks of Acting Judge Madgwick QC of 22 May 2015 concerning the offence under s.60A(3) Crimes Act 1900.

119. Having heard the Applicant give evidence at the sentencing hearing in May 2015, Acting Judge Madgwick QC noted signs of attitudinal change on the Applicant’s behalf which were described by his Honour as “encouraging expressions of maturity”.

120. Against a very bleak starting point, reflected in the opinion of Mr Jones that the Applicant was already institutionalised as at October 2014, the evidence indicates some guarded signs of improvement in the Applicant’s attitude and conduct which bear upon his prospects of rehabilitation and risk of reoffending. A detailed note dated 5 February 2019, prepared by a psychologist within the Department of Corrective Services, indicated a level of co-operation on the part of the Applicant in undertaking rehabilitative programs in custody.

121. The Crown relied upon the affidavit of Mr Jones affirmed 1 October 2019 on resentence. That affidavit annexes information concerning the Applicant’s custodial misconduct reports.

122. The Crown observed that there have been disciplinary matters in custody since 2015 for which various punishments were imposed. It is noteworthy, however, that there was no disciplinary offence since February 2017 with the exception of a physical altercation between the Applicant and another person in July 2019 for which the Applicant was confined to his cell for three days. Despite the Applicant’s grim criminal and custodial history, there are some signs of a reassessment being undertaken by him in custody in more recent times. It cannot be expressed any higher than that for the purpose of sentence.

123. It was submitted for the Applicant that the sentence imposed in this case was a severe one with a number of examples of sentences imposed in other manslaughter cases being referred to in this respect. The myriad circumstances of manslaughter offences render it unhelpful to speak in terms of a range of sentences, or tariff, for manslaughter: R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120 at [227].

124. I do not consider that any real assistance is provided in this case by reference to other sentencing decisions, although I have considered the decisions to which the Court was taken - R v Diab [2005] NSWCCA 64; Taufahema v R [2007] NSWSC 1460; R v Fraser and Spencer [2007] NSWSC 1449; R v Kari and Others [2008] NSWSC 993; R v Forbes [2010] NSWSC 1547; R v O’Brien and Others [2012] NSWSC 1503; R v Shedden [2013] NSWCCA 225; Mariam v R; R v Mariam [2013] NSWCCA 338; R v Hamzy [2018] NSWCCA 53 and R v Smith [2015] NSWCCA 193. The sentence imposed upon the present Applicant was a substantial one, but there was no ground asserting that it was manifestly excessive, nor could that have been realistically asserted in this case.

125. It should be kept in mind that the current sentences affecting the Applicant for the manslaughter offence and the s.60A(3) offence mean that he has a total effective head sentence of imprisonment for 14 years with a total effective non-parole period of 11 years and six months. The effective non-parole period is now 82% of the head sentence.

126. This relationship between the sentences is the understandable outcome of the need for real and measurable accumulation for the serious s.60A(3) offence which was committed by the Applicant against a correctional officer whilst he was a remand prisoner in February 2012 following his arrest for the present matter.

127. As was accepted on sentence in the District Court, if the Applicant fell within the definition of “convicted inmate” at the time of that offence, he would have been subject to the more onerous provisions in s.56(3A) Crimes (Sentencing Procedure) Act 1999 concerning accumulation of sentence.

128. At the same time, as the sentencing Judge in the District Court made clear, a serious offence of violence committed by an inmate against a correctional officer required significant punishment: R v Schneidas (No 1) (1980) 4 A Crim R 96 at 100; Hope v R [2018] VSCA 230 at [73].

129. The maintenance of discipline within correctional institutions is a matter of very great importance and sentences for offenders involving attacks on correctional officers in the execution of their duty must involve, as a significant component, both personal and general deterrence: R v Davis (Court of Criminal Appeal, Gleeson CJ, Meagher JA and Wood J, 4 February 1994).

130. If the Court resentences the Applicant for the manslaughter offence, the power of the Court is limited to variation of the date of commencement of the sentence for the s.60A(3) offence under s.59 Crimes (Sentencing Procedure) Act 1999. The Court is exercising a narrow and essentially mechanical task of varying the date of commencement of sentence for the s.60A(3) offence and this does not involve the Court resentencing the Applicant for that offence: Makarov v R (No. 4) [2008] NSWCCA 341 at [9].

131. It remains important, however, that the Applicant should serve no less than the additional custodial component of 18 months ordered by Acting Judge Madgwick QC for the serious s.60A(3) offence committed by the Applicant. The principles in R v Schneidas (No. 1), Hope v R and R v Davis call for that approach so as to reflect properly the actual additional minimum term to be served by the Applicant for that offence.

132. The Court should have regard to the issue of totality in resentencing the Applicant for the manslaughter offence and, in this way, may have regard to the overall sentence in particular by reference to special circumstances. The issue of the Applicant’s institutionalisation is also relevant to the special circumstances issue. The Court should take into account the need for a sufficient period of conditional and supervised liberty to assist the protection of the community, by maximising the prospect that the Applicant will not reoffend when the time comes for him to be released into the community. This approach does not involve the somewhat unrealistic suggestion that institutionalisation can be avoided in the Applicant’s case. Rather, it acknowledges the fact of institutionalisation and seeks to reduce the adverse consequences of that state of affairs: Jinnette v R [2012] NSWCCA 217 at [103].

133. It is appropriate to take into account, as the sentencing Judge did, the Applicant’s history of disadvantage and extensive incarceration both as a juvenile and a young adult and the manner in which those factors impacted upon his early development. It is necessary, as well, as the sentencing Judge did, to have regard to the Applicant’s onerous custodial conditions.

134. Having regard to all factors which bear upon the imposition of sentence for the offence of manslaughter, I am satisfied that a sentence of imprisonment for 13 years should be imposed for that offence.

135. A finding of special circumstances should be made on sentence for the manslaughter offence. This finding is appropriate by reference to the totality principle (given the additional sentence for the s.60(3) offence) and to ensure that there is a sufficient period of supervised conditional liberty available to the Applicant when the time comes for the State Parole Authority to consider his release on parole. This step is taken in the interests of protection of the community as well as to extend an opportunity for the Applicant to demonstrate a willingness to undertake a law-abiding life in the community.

136. In accordance with the approach taken by Acting Judge Madgwick QC, there should be accumulation of 18 months of the non-parole period for the s.60A(3) offence to operate from the expiration of the non-parole period fixed for the manslaughter offence.

137. With respect to the offence of manslaughter, the sentence will comprise imprisonment for 13 years with a non-parole period of eight years and six months commencing on 6 March 2012 and expiring on 5 September 2020 with a balance of term of four years and six months commencing on 6 September 2020 and expiring on 5 March 2025.

138. An order should be made under s.59 Crimes (Sentencing Procedure) Act 1999 varying the sentence of imprisonment for the s.60A(3) offence to a sentence of imprisonment for three years, comprising a non-parole period of two years commencing on 6 March 2020 and expiring on 5 March 2022 with a balance of term of one year commencing on 6 March 2022 and expiring on 5 March 2023.

Conclusion

144. It is appropriate to return to the question of extension of time. I am satisfied that there is merit in the Applicant’s grounds of appeal and that it is appropriate, if an extension of time is granted, to move to resentence the Applicant. I have regard to the Crown submissions and the interests of the family of the deceased and the community. I am satisfied, however, that the interests of justice warrant an extension of time in this case.

145. I propose the following orders:

1. time for the Applicant to apply for leave to appeal against sentence extended to 25 June 2019;

2. grant the Applicant leave to appeal against sentence;

3. appeal against sentence imposed on 10 December 2014 is allowed and the sentence is quashed;

4. for the offence of manslaughter, the Applicant is sentenced to imprisonment for 13 years comprising a non-parole period of eight years and six months commencing on 6 March 2012 and expiring on 5 September 2020 with a balance of term of four years and six months commencing on 6 September 2020 and expiring on 5 March 2025;

5. pursuant to s.59 Crimes (Sentencing Procedure) Act 1999, the sentence imposed at the Sydney District Court on 22 May 2015 for an offence under s.60A(3) Crimes Act 1900 is varied to a sentence of imprisonment for three years, comprising a non-parole period of two years commencing on 6 March 2020 and expiring on 5 March 2022 with a balance of term of one year commencing on 6 March 2022 and expiring on 5 March 2023;

6. the earliest date upon which the Applicant will be eligible for release on parole is 6 March 2022.

146. FULLERTON J: I agree with Johnson J.

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Decision last updated: 30 December 2019